The ESA spent over $2 million to fight for the first amendment rights of games …

The Supreme Court ruled that video games are an act of expression, and games have been granted full protection under the First Amendment. This creates a strong precedent that should dissuade future politicians from trying push through legislation that will be considered not only unconstitutional, but costly to the their states.

"We are pleased with the ruling, which is an important affirmation of First Amendment rights and a victory against an unwarranted, selective attack on our industry," Activision CEO Bobby Kotick told Kotaku. "Protecting children from age inappropriate content is important and that's why we have an industry-standard ratings system that is clear and unambiguous."

Here's the problem: Activision is certainly going to benefit from the Supreme Court ruling, but it wasn't willing to pay for the industry's defense.

When an issue such as the Supreme Court case comes up, the Entertainment Software Association is on the front lines. This is the trade group that operates in the interests of the video game industry, and counts almost every major publisher as a member. Activision left the ESA in 2008.

The "freerider effect"

"In every trade association these gaps exist. What you would call the free-rider effect, it exists in every industry, whether you're in the AMA, whether you're a dentist, in the cement association... believe me, there are 4,000 of these groups in Washington DC, just so you know," ESA President Michael Gallagher said when asked about Activision's status during a dinner at E3. "There is always the incentive to behave in that manner."

Gallagher said that it was their job to make sure the ESA remained relevant. "There are two key things to keep in mind: we have to do things that are valuable and important, and we believe we are."

He brought up proposed regulations covering how companies can take in revenue online, because of fears of terrorism. "If you're not engaged with the ESA, you have no voice in that. Because you didn't know. That comment deadline came up, and we took charge for the industry. But the strategy in how to reply to it was driven by Microsoft, Electronic Arts, Disney, and others. It would be prudent for companies that care about issues like that to become a part of the ESA."

It cost over $2 million to argue against the California video game law on the industry's behalf, and it was the ESA's lawyers who did the fighting. The ESA is the group that helped to organize the wide array of trade associations that filed briefs to support the gaming industry. While Activision filed its own amicus brief in support of the gaming industry, the company wasn't willing to actually pay to help support gaming.

Call of Duty is one of Activision's largest franchises, and those games carry a Mature rating. The content descriptors for Black Ops list the game as having "Blood and Gore, Intense Violence, and Strong Language." This is the sort of game that could have been barred from being sold to underage gamers in California, impacting Activision's bottom line. The company is going to profit from the ESA's work, but it's doubtful that is going to change the company's stance on ESA membership.

It's a sound strategy financially, but with Activision printing money from Blizzard's stable of games and the yearly Call of Dutry releases, it's not like ESA dues would be a major hit to the company's bottom line. Besides, why not just continue profiting from the ESA's work when there is no direct incentive to pay in? As long as enough publishers remain in the ESA, the industry will remain protected, and Activision can continue to profit handsomely while selling violent content.

Gallagher was friendly when asked if he expected Activision to join the ESA. "The door is open," he said. "And they're welcome."